(1755) 1 Paton 597
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
House of Lords
Compensation was pleaded against an heritable bond. Held this plea was barred by mutual general discharges granted of even date with the bond; and not competent to be pleaded against the party to whom the bond was assigned, although assigned in security. Also held that an English executrix is not liable to be called to account in the Courts in Scotland.
Sir Archibald Grant being indebted to Lieut. Colonel Burroughs in the sum of L.3810, granted an heritable bond for the sum of L.2000, payable five years thereafter. This bond was granted as the result of an adjustment between them of mutual claims against each other, and of even date therewith a discharge was granted, referring to the debt of L.3810, and to this bond as having been granted in full satisfaction of this balance, and both parties mutually discharged each other. This bond for L.2000 was assigned by Colonel Burroughs to his father-in-law, Cartwright, who died, leaving the appellants, his daughters, Catherine, Mary (Colonel Burroughs' wife), and Frances, his only children and heirs.
Colonel Burroughs, the cedent, died in October 1742.
The three daughters raised action for payment
July 24, 1752.
The Court of this date, inter alia, “found that the pursuer, Mrs Burroughs, who administrate the effects of the deceased Colonel Burroughs, her husband, in England, is not bound to account here for her intromissions in virtue of that administration.”
July 11, 1754.
On reclaiming petition on the whole points, the Lords afterwards “found it competent to the said defender Sir Archibald Grant, notwithstanding the mutual general discharge, dated 26th September 1733, of all demands preceding that date, to plead retention on account of debts arising from copartneries, though contracted prior to the said 26th of September 1733. 2 d, Found that there is sufficient evidence that the bond pursued on was conveyed to the deceased Mr Henry Cartwright for security and in implement of the marriage articles, settling the sum of L.3000 sterling upon Mr Burroughs for life, and after his death to Mrs Burroughs for life, and after both their deaths to the children of the marriage; and failing issue of the marriage, to the survivor, their executors, and administrators. 3 d, Found that there is no sufficient evidence that the sum covenanted by the marriage articles was satisfied, in whole or in part, by Cartwright's intromissions with Burroughs' effects, further than to the extent of L.1040 sterling applied to the purchase of L.1000 capital South-Sea stock. 4 th, And found it competent to the defendant to plead compensation against the bond pursued on to the extent of the annual rents during Mr Burroughs' life. 5 th, But found it not competent to the defender to plead retention on account of Mrs Burroughs being administrator of her husband's effects in England, and of the defender's counter-action against
Another reclaiming petition was presented but refused.
Against the interlocutor of 24th July 1752, so far as it finds compensation pleadable as regards the annual rent that fell due during Mr Burroughs' life, and also against the interlocutor of 11th July 1754, except that part of the same which found the respondent not entitled to plead compensation on account of Mrs Burroughs' intromissions with Colonel Burroughs' effects in England, an appeal was brought. The respondent also presented a cross-appeal against such parts of the interlocutor as were against him, and in particular the interlocutor of 24th July 1752, and against 2d, 3d, and 5th articles of the interlocutor of 11th July 1754.
Pleaded for the Appellants:—The mutual general discharges executed and signed by the parties, of even date with the bond in question, totally bars all claims of compensation or retention, and proves that all such claims existing prior to that date, were there by discharged and extinguished. This discharge expressly releases “all demands” against each other preceding that date, and it is now incompetent for the respondent to bring forward these old claims against the bond now sued for. Besides, that bond was assigned by Burroughs to Cartwright for a valuable consideration; namely, the securing performance of an obligation contained in an ante-nuptial contract of marriage, and having no notice at this time of any counter claim affecting the bond assigned, as existing prior to the assignation, the same is
Pleaded for the Respondent:—That the mutual discharge, granted of even date with the bond, did not comprehend, and was not intended to cover, the transactions between them as joint partners in the mines. These were not then in consideration, and not then even known to the parties, as the debts due by the concern were not ascertained. To make the discharge therefore extend in these circumstances to the mining concern, would be a stretch of construction beyond what law permits. While in regard to the interest of this bond falling due, and payable during Colonel Burroughs' life, it is quite evident, that it was attachable by his creditors, who could plead retention against it, because the assignation, looking to the nature thereof, could not exclude retention to this extent. But, further, if Colonel Burroughs' effects were intromitted with, it is impossible to say how much of the marriage provision may have otherwise been recovered, so as to
After hearing counsel, it was
Ordered and adjudged, that so much of the said several interlocutors as is complained of in and by the original appeal be, and the same is hereby, reversed. And it is further ordered and adjudged, that the said cross-appeal be, and is hereby, dismissed this House; and that the several interlocutors, and parts of interlocutors, in and by the said cross-appeal complained of be, and the same are hereby, affirmed.
Counsel: For Appellants,
For the Respondent, Robert Dundas, A. Hume Campbell.
Note.—In giving judgment, it was observed by the Judges of the Court of Session, on the point of international law:—
“That Mrs Burroughs not only could not be properly discharged here, but how could she account here by the law of England ? How could she show here what claims were against her in England, or what allowances she was entitled to by the law there; or how could she bring her husband's English creditors to account here?”
Upon this point, which was made the subject of the cross-appeal, their judgment was affirmed in the House of Lords.— Vide Ferguson, &c., v. Douglas, Heron & Co., House of Lords, 11th November 1796. Appeal cases.